Ernst v. Federal Government Dockyard Trades and Labour Council (East)

Ernst v. Federal Government Dockyard Trades and Labour Council (East) Court Supreme Court Date 2007-03-14 Citation 2007 NSSC 82 Docket SH 274840 Judge/Registrar/Adjudicator Goodfellow, Walter R. E. (Honourable Justice) (SC) (SC) Document Type Decision Relations Library Sheet - Ernst v. Federal Government Dockyard Trades and Labour Council (East) - 2007 NSSC 82 - 2007-03-14 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Ernst v. Federal Government Dockyard Trades and Labour Council (East), 2007 NSSC 82 Date: 20070314 Docket: S.H. No. 274840 Registry: Halifax Between: Kevin W. Ernst Applicant v. Federal Government Dockyard Trades and Labour Council (East) Respondent - and - Ross Watson as Chairman of the Kevin W. Ernst Trial Board Respondent Judge: The Honourable Justice Walter R.E. Goodfellow Heard: March 13, 2007, in Halifax, Nova Scotia Counsel: Andrew Pavey, for the Applicant David A. Mombourquette, for the Respondent, Federal Government Dockyard Trades and Labour Council Ross Watson, Respondent By the Court: BACKGROUND [1] Kevin W. Ernst is the President and Business Manager of Local 1133 of the International Brotherhood of Electrical Workers. The IBEW Local ll33 is one of the members of the Federal Government Dockyard Trades and Labour Council. Mr. Ernst in January 2006 sent an e-mail which he labelled as an inquiry concerning the possibility of a ratification vote in the context of a ratification matter at issue at the time. This action triggered his suspension from Council in March 2006. [2] On April 11, 2006, Mr. Ernst was charged by Dean Reid, Past President of the Council with violating the affiliation constitution stating that the Council alone had the authority to communicate with Treasury Board, and that the e-mail Mr. Ernst sent in January undermined the Council’s position. [3] On May 8, 2006, Ross Watson (who had later become Chair of the Trial Board struck to deal with the Reid charge) charged Mr. Ernst with violating Article XXV, S. 1(a), (e) and (j) of the IBEW Constitution. Mr. Watson characterized the e-mail sent by Mr. Ernst as an “irresponsible act” and as a “deliberate attempt to undermine Council’s ability to settle a Collective Agreement”. Mr. Watson viewed the e-mail as an attack on Council and that Mr. Ernst’s activities were irresponsible and habitual and therefore had to be addressed. [4] A Trial Board was constituted to take place May 9 and the suspension was lifted pending the outcome of the Trial Board hearing. [5] Mr. Watson who had filed charges against Mr. Ernst with the IBEW was to be the Chair of the Trial Board convened to deal with the Reid charge. On July 7, 2006, Mr. Ernst sent an e-mail to Mr. Watson requesting he recuse himself from the Trial Board and this was followed up by a letter of August 28, 2006. In this letter Mr. Ernst requests Mr. Watson recuse himself and pointed out that Mr. Watson had authored a written complaint against Mr. Ernst dated May 8, 2006 and that the charges filed with the Council deal essentially with same subject matters. Mr. Ernst’s letter recites that, in his view, Mr. Watson had made up his mind because in his submission, in support of his charge, described the e-mail as “a deliberate attempt to undermine the Council’s position” and further as an “irresponsible act”. Mr. Watson also indicated Mr. Ernst’s action constituted an “attack on Local ll31" as well as on the Council itself. There is an indication that Mr. Watson advised that the Trial Board’s decision could be used against Mr. Ernst in another constitutional trial. [6] As previously noted, the Trial Board to deal with the Reid charge was convened May 9, 2006 at which time Mr. Watson accepted the position of Chair and did not disclose to the Trial Board members that he had filed a charge against Mr. Ernst the day before related to the same set of circumstances. [7] The charges advanced by Mr. Watson to the IBEW were dismissed and Mr. Ernst was provided with this information in a letter October 17, 2006 from the International Vice-President. [8] Mr. Ernst’s lawyer wrote a letter to the Secretary October 16, 2006 and it is indicated that this letter was turned over to Mr. Watson. Mr. Watson kept this letter and did not provide the Trial Board members with a copy of it. The Board proceeded to find Mr. Ernst guilty of a “constitutional infraction” and that the punishment was, in effect, the time previously suspended which ran from March 30, 2006 to May 9, 2006. APPLICATION [9] This is an Application by Kevin W. Ernst seeking a declaration that the decision of the Trial Board be declared null and void and quashed for want of jurisdiction and breach of natural justice. ISSUES Issue 1. Whether this Honourable Court lacks jurisdiction to make the declaration requested in the Applicant’s Originating Notice; and Issue 2. That the Applicant has failed to exhaust internal appeal procedures available to him under the Council Constitution. [10] Counsel filed extensive briefs and case authority and at the hearing in Chambers addressed the jurisdiction issue first. The Labour Council and Mr. Watson relying upon Public Service Labour Relations Act, S.C. 2003, c. 2. This Act provides for the creation of a Public Services Relations Board which is responsible for administering and enforcing the provisions of the Act. The Council takes the position that it is a comprehensive scheme and the proper forum for Mr. Ernst’s claim. Section 36 of the Act is as follows: The Board administers this Act and it may exercise the powers and perform the functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of Orders requiring compliance with this Act, regulations made under it or decisions made in respect of a matter coming before the Board. Section 188 of the Act provides that the disciplinary standards of an employee organization cannot be imposed on an employee in a discriminatory manner: No employee or organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall, ... (c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner; [11] The modern approach to labour relations schemes is to consider that labour relations legislation provides a comprehensive code governing all aspects of labour relations, and accordingly, the Courts should defer jurisdiction to statutory tribunals provided for in these legislative schemes. [12] To determine whether a Court should defer jurisdiction to a tribunal created as part of a comprehensive labour relations scheme, the Court must consider the essential character of the claim. If the labour relations scheme and the statutory scheme provides a cause of action that affords an effective remedy, generally speaking, the statutory scheme should provide the exclusive remedy and not the Courts. [13] In the present case, the Council maintains that the statutory duty and the Act oust the common law claim advanced by Mr. Ernst and states that in its view, Section 188 of the Act encompasses the claim. In Pileggi v. Canadian Union of Postal Workers, [2005] O.J. No. 1734 (Ont. S.C.J.), the composition or jurisdiction of the Disciplinary Committee itself was not at issue. The Court framed the matter in terms of a disciplinary matter involving the rules of natural justice and found it was governed by the Canada Labour Code; consequently the Canada Industrial Relations Board, not the Court, had jurisdiction. [14] I view this matter as not a question of whether a disciplinary standards have been applied unevenly or in a discriminatory fashion. [15] The issue before this Court is not whether the Council singled Mr. Ernst out for special treatment in the charge, but rather the involvement of Ross Watson on the Trial Board should render the Trial Board’s decision invalid in face of Mr. Watson’s clearly bias and personal interest. In my view, this has nothing to do with disciplinary standards. Natural justice issues which are the manifestation of the discriminatory application of standards of discipline are captured by the legislation, but I hold that Section 188 of the Public Service Labour Relations Act does not apply here given that the present application does not involve a matter of disciplinary determination, but an allegation of bias that goes to the fundamental of impartiality to the extent that the Council members must be free of bias, otherwise it is a breach of the fundamental prerequisite of a trier. [16] The onus of establishing bias, or the perception of bias, is upon Mr. Ernst. The conduct of Mr. Watson, in that he was the person responsible for laying a charge with the International Union, arising out of the same factual situation that he continued to be a member of the Trial Board, and actually accepted the Chairmanship of the Board to deal with the same issue, from the earlier charge by Reid. It is clear also in the language he uses in his letter in which he lays those charges that he has a predetermined biased position, having stated: “the irresponsible activities of Kevin Ernst are just as much an attack on Local ll31 as the Council”, and proceeding further to make his position clear that Mr. Ernst would be judged, in part, on his previously habitual engaging in what Mr. Watson, the Chair, thought were irresponsible activities. [17] In my view, this conduct is an egregious breach of natural justice. Not only does the Court have jurisdiction, I find that Section 188 of the Public Service Labour Relations Act does not have jurisdiction or provide the appropriate relief when a member/chair participates in an adjudication and fails to disclose a predetermined state of mind which precludes any objective assessment of the charge before the Trial Board of which he is a member/chair. [18] The rule against bias is one of the most fundamental elements of natural justice. Spence v. Spencer, Chairman of the Board of Police Commissioners of the City of Prince Albert et al 1987 CanLII 985 (SKCA). [19] As a result the Application of Kevin W. Ernst is granted and a declaration will be issued to quash the decision of the Trial Board for breach of natural justice. [20] Normally in labour matters a dispute requires the party to exhaust any appeal procedures before having possible resort to the Courts, however, such is not required where, as I have determined, there is an egregious breach of natural justice. COSTS [21] If counsel are unable to resolve the issue of costs, they should provide written representations within a reasonable period of time and the Court will tax costs and disbursements. J.